Civil Aviation Order 82.6 Amendment Order (No. 1) 2008

Explanatory Statement

Civil Aviation Act 1988

Civil Aviation Order 82.6 Amendment Order (No. 1) 2008

Background

Night vision goggles (NVG) are a head mounted night vision enhancement device. They use image intensifying technology to amplify the available ambient light sufficiently for images to be seen through the NVG eyepieces as a monochromatic green image.

NVG technology evolved mainly in advanced military forces, including in Australia. In certain strictly controlled circumstances, the use of NVG can enhance crew situational awareness and improve overall flight safety under night visual flight rules (NVFR). As a result of helicopter industry interest, and overseas developments, in the use of NVG for civilian helicopter operations, CASA established an assessment trial to facilitate the use of NVG in certain public interest helicopter operations.

Civil Aviation Order 82.6 (CAO 82.6) supports the trial by providing for operational and airworthiness standards and approval requirements for the use of NVG in specialised helicopter aerial work operations, namely, search and rescue, law enforcement, aerial fire fighting, aerial fire fighting support, emergency medical services, marine pilot transfers, training for any of these, and demonstration and positioning flights.

CAO 82.6 makes unlawful any non-approved use of NVG as a primary means of terrain avoidance for safe air navigation by means of visual surface reference external to an aircraft.

Purpose of the CAO amendment

Civil Aviation Order 82.6 Amendment Order (No. 1) 2008 (the CAO amendment) amends CAO 82.6 essentially to take into account representations made to CASA by the joint CASA/industry NVG Trial Monitoring and Evaluation Group (the Group) at its March 2008 meeting.

The Group, which is comprehensively representative of the relevant helicopter industry involved with NVG, was established by CASA for the purpose of overseeing various aspects of the NVG trial. An important part of its role is to suggest for consideration amendments to CAO 82.6 to ensure that the trial of NVG is as effective and as safe as possible so that it may be relied upon to guide future developments in the use of NVG.

The CAO amendment also includes 2 small amendments designed to confirm that certain decisions must be in writing. This is to implement an undertaking given to the Senate Standing Committee on Regulations and Ordinances (SSCRO) by the former Department of Transport and Regional Services (DOTARS). DOTARS gave this undertaking, with CASA’s agreement, in lieu of the minister during the 2007 general election caretaker period.

Details of the CAO amendment

For the March 2008 Group meeting, much of the focus was on various prerequisite requirements for training, and on training and competency standards.

In addition, an amendment in Schedule 1 of the CAO amendment extends the duration of the trial to the end of January 2009 to allow for a longer assessment of the trial operations.

The details of the substantive amendments made by Schedule 2 of the CAO amendment are set out in Attachment A.

Legislation

The legislative basis for CAO 82.6 is set out in Attachment B. The CAO amendment is made under the same legislative framework.

Legislative Instruments Act 2003 (the LIA)

CAO 82.6, and amendments to it, take effect as conditions on Air Operators’ Certificates.

Under subsections 98 (4A) and (4B) of the Civil Aviation Act 1988 (the Act), Civil Aviation Orders made for section 28BA of the Act (conditions on Air Operators’ Certificates) are expressly declared to be legislative instruments.

The CAO amendment is, therefore, a legislative instrument and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.

Consultation

Consultation under section 17 of the LIA has been undertaken. As noted above, the CAO amendment arises from recommendations made at the March 2008 Group meeting.

Regulation Impact Statement

The Office of Best Practice Regulation (OBPR) advised that CAO 82.6 may proceed without the preparation of a Regulation Impact Statement (RIS). The CAO amendment is intended to make minor adjustments to CAO 82.6 for the purposes of the ongoing NVG trial.

OBPR does not require a RIS for the CAO amendment because a preliminary assessment of the business compliance costs indicates that the CAO amendment will have only a nil to low impact on business.

Commencement and making

The instrument comes into effect on the day after it is registered.

As mentioned above, the amended CAO 82.6 stops having effect at the end of 31 January 2009. This is a revised date for termination of the NVG trial.

The instrument has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 84A (2) of the Act.

[Civil Aviation Order 82.6 Amendment Order (No. 1) 2008]

Attachment A

Details of Civil Aviation Order 82.6 Amendment Order (No. 1) 2008

Amendment No. 1

The definition of aerial fire fighting is modified to include an operation using a helicopter that takes water, fire retardant or similar substance into a belly tank while in the hover and using its on-board pump. Previously, filling or refilling could only occur when the helicopter was on the ground.

The amendment also makes it clear that only water, fire retardant or similar substance may be taken into the belly tank.

Amendment No. 2

Subclause 5.2 of Appendix 1 contained 2 paragraphs labelled (h). This amendment corrects that typographical error by relabelling them (h) and (i).

Amendment No. 3

Under subclause 9.2 in Appendix 1 of CAO 82.6, a person may obtain an NVG aircrew member qualification only by a log book endorsement entered by CASA, an authorised person or an NVG aircrew member instructor of an approved operator’s training and checking organisation or NVG training provider.

Under clause 18 in Appendix 3 of CAO 82.6, eligibility for NVG aircrew member and instructor qualifications arises from compliance with the requirements of the relevant operator’s operations manual as accepted by CASA. Thus CASA retains quality control over the eligibility requirements.

It is not desirable or necessary for CASA, or persons specifically authorised by CASA, to make NVG aircrew member or instructor endorsements when these matters can be better regulated through an acceptable operations manual. The amendment, therefore, recasts the subclause and deletes CASA and authorised persons from those who may make such endorsements.

Amendment No. 4

Under subclause 11.2 in Appendix 1 of CAO 82.6, unless otherwise approved by CASA, before an NVG pilot may use NVG for the first time in a helicopter for which he or she holds a type endorsement, he or she must, within the preceding 4 weeks, have had an NVG competency check flight (CCF) in the helicopter type.

Under this amendment, as an alternative to the requirement for such an NVG CCF, the NVG pilot may have an NVG operational flight check, acceptable to CASA, and in accordance with the operator’s operations manual.

Amendment No. 5

This amendment provides that amended subclause 11.2, mentioned above, does not apply if, for the purposes of CAO 82.6, the NVG pilot has completed an NVG flight test in the particular helicopter type.

Amendments Nos. 6 and 7

Under subclause 14.1, an NVG flying operations inspector (FOI) or an NVG testing officer may conduct an NVG flight test or issue an NVG endorsement for certain NVG qualifications, including an NVG training and checking pilot qualification.

CASA considers that it is preferable, and consistent with its established policies, that only NVG FOIs should conduct flight tests to approve an NVG training and checking pilot of a TCO.

Amendment 6, therefore, deletes training and checking qualifications from the scope of subclause 14.1.

Amendment 7 creates a new subclause 14.1A under which only an NVG FOI may conduct an NVG flight test to approve an NVG training and checking pilot of a TCO.

Amendment No. 8

Under subclause 14.2, before the CAO amendment, an aircrew member qualification could be awarded only by an NVG aircrew member instructor approved by CASA or the operator’s training and checking organisation.

Consistent with the policy reflected in Amendment No. 3, it is not desirable or necessary for CASA to approve an NVG aircrew member instructor to award NVG aircrew member qualifications.

The amendment, therefore, deletes reference to CASA in this role and recasts the requirements as follows.

An NVG aircrew member qualification may only be awarded in accordance with the procedures set out in the operations manual of an operator permitted under subparagraph 5.1 (g) (i) or (ii) of Appendix 1 to provide NVG training. It may only be awarded by an NVG aircrew member instructor of the operator’s training and checking organisation or of an approved NVG training provider.

Amendment No. 9

This amendment modifies the conditions for carriage of a passenger on an NVG operation in order to observe a demonstration of NVG technology.

The passenger may only be carried if the carriage is in accordance with procedures and conditions, acceptable to CASA, set out in the operator’s operations manual. In addition,               not later than 48 hours before the flight, CASA is to be notified in writing of the name, position and organisation of the passenger and the proposed flight plan.

An additional Note explains that carriage of such passengers must be solely for demonstration purposes.

The additional Note also mentions that guidance about the relevant procedures and conditions that CASA would find acceptable in an operations manual is contained in CAAP 174-1 (1). Relevant procedures and conditions relate to, for example, numbers of passengers, passenger emergency training, minimum height above highest obstacle, flights over water and suitable HLS.

Amendment No. 10

Paragraph 11 (b) of Appendix 3 of CAO 82.6 describes the actions a pilot must take in an NVG operation if visibility of 5 000 m. cannot be maintained (in brief, alter direction or climb).

This amendment adds the additional option to land as soon as practicable but only if a suitable helicopter landing site (HLS) is available and it is safe to land at it.

A note indicates that a suitable HLS includes a HLS-NVG basic and a HLS-NVG standard if landing there is otherwise permitted under CAO 82.6.

Amendments Nos. 11 and 12

Under paragraphs 15.4 (b) and (c) in Appendix 1 of CAO 82.6, the requirements for an NVG flight instructor include a current grade 1 or grade 2 flight instructor (helicopter) rating, or “an overseas or military equivalent approved by CASA”, and a night training approval or “an overseas or military equivalent approved by CASA”.

The amendments make it clear in each case that the necessary CASA approval of “an overseas or military equivalent” must be in writing. A night training approval is issued as a written instrument under other legislation.

These 2 amendments implement an undertaking given to SSCRO by the former DOTARS. DOTARS gave this undertaking, with CASA’s agreement, in place of the Minister during the caretaker period for the 2007 general election.

Amendment No. 13

This amendment removes from the requirements for an NVG flight instructor that he or she must have “an NVG training approval issued by CASA”. In practice, this is the NVG flight instructor approval itself and the inclusion is, therefore, redundant.

Amendment No. 14

This amendment increases the number of hours of NVG flight time required to be approved as an NVG flight instructor.

Previously at least 40 hours, the new requirement is to have at least 50 hours of NVG flight time. This may include flight time gained during an NVG flight instructor training course provided it was completed within the 12 months before the application for NVG flight instructor approval. (For the NVG flight instructor training course, see Amendment No. 15.)

Amendment No. 15

This amendment adds a new requirement for the NVG flight instructor approval.

The new requirement is that a candidate must have successfully completed an NVG flight instructor training course acceptable to CASA, that is of at least 5 hours duration, has a syllabus which includes development of the ability to instruct effectively for competency in relevant subjects, and is conducted by an approved operator in accordance with his or her operations manual.

The relevant subjects are mentioned in subclause 30.4 of Appendix 3 of CAO 82.6.

A Note indicates that the syllabus may also provide for development of other instructional abilities relevant to the requirements of the operator’s specific NVG operations.

Amendment Nos. 16, 17 and 18

These amendments are designed to modify the recency requirements for NVG pilots.

Under clause 21 of Appendix 3 of CAO 82.6, an NVG pilot is required to meet certain minimum recency requirements after less than, or more than, 100 hours NVG flight time (for example, conduct periodic NVG flight time and NVG CCF). The requirements are set out in columns 2 and 3 of Table 21.1.

In the present state of development of the NVG helicopter industry, it may take quite a long time for a NVG pilot to gain 100 hours flight time as pilot in command and qualify for the less onerous recency regime set out in column 3. After consideration of industry representations, CASA agreed that accumulation of more than 50 hours of NVG flight time should be sufficient to become eligible for the less onerous NVG recency requirement.

The categories of NVG flight are NVG pilot in command (PIC), NVG pilot in command under supervision (PICUS), and NVG pilot under post-initial qualification dual instruction by an NVG flight instructor (dual).

For up to 50 hours NVG flight time, the required recency for NVG pilots in command (PIC or PICUS but not dual) is as it was for up to 100 hours, either 3 hours NVG flight time (incorporating at least 3 take-offs, circuits and landings within the last 3 months) or an NVG CCF within the last 3 months.

For up to 50 hours NVG flight time, the required recency for an NVG pilot who is acting in a co-pilot capacity is as it was for up to 100 hours, either 1 hour NVG flight time (incorporating at least 3 take-offs, circuits and landings within the last 3 months) or an NVG CCF within the last 3 months.

For more than 50 hours NVG flight time, the required recency for all NVG pilots is as it was for more than 100 hours, either 3 hours NVG flight time (incorporating at least 3 take-offs, circuits and landings within the last 6 months) or an NVG CCF within the last 6 months.

Amendment No. 19

This amendment modifies one of the prerequisites required before commencing training for an initial NVG pilot qualification.

Previously a trainee pilot had to have a total of at least 10 hours of certain experience, of which at least 3 hours had to be in the 3 months immediately before the initial award of the NVG endorsement.

Now, as an alternative to that, the trainee may have, within the 3 month period, an unaided check flight at night, with an instructor qualified to instruct in a helicopter under the NVFR. The check flight must meet the requirements specified in paragraphs 2.1 (a) and (c) in Appendix 1 of Civil Aviation Order 40.2.2 (CAO 40.2.2).

A Note explains that paragraphs 2.1 (a) and (c) of Appendix 1 in CAO 40.2.2 provide for the minimum handling requirements for instruments under the NVFR.

A further Note clarifies that if the pilot is already qualified under the NVFR, the alternative requirement provided for would also satisfy the requirements of sub‑subparagraphs 29 (f) (ii) (C) and (D) if it were conducted within the 3 months immediately before commencing NVG training.

Amendment No. 20

Previously, one of the prerequisites required for initial NVG pilot training was either to hold a current command helicopter instrument rating, or to have completed at least 10 hours of certain dedicated dual instrument training.

It was possible to acquire some of this training in an aeroplane rather than a helicopter. This is no longer considered suitable preparation and the prerequisite now requires certain dedicated helicopter dual instrument training.

Amendment No. 21

Previously, one of the prerequisites required for initial NVG pilot training was either to hold a current command helicopter instrument rating, or to have completed at least 10 hours of dedicated dual instrument training of which not more than 7 hours could be in a fixed-wing aircraft.

The option of using 7 hours in a fixed-wing aircraft to acquire this perquisite has been deleted as inappropriate.

Amendment No. 22

Previously, one of the prerequisites required for initial NVG pilot training was log book

endorsement for low flying if low flying was to be conducted during or after NVG

training.

The requirement has been modified. The trainee pilot is now required to have successfully completed low flying training that, as a minimum, meets the requirements of clause 3 in Appendix 1 of CAO 29.10 (the acceptable standard) or a standard demonstrated by the trainee pilot to CASA’s satisfaction to be equivalent to the acceptable standard.

Attachment B

Legislative basis for CAO 82.6 and amendments to it

Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and the safety of air navigation.

CAR 1988

Under subregulation 5 (1) of the Civil Aviation Regulations 1988 (CAR 1988), where CASA is empowered to issue certain instruments, it may do so in a CAO.

Under subregulation 157 (1) of CAR 1988, the pilot in command of an aircraft must not fly over a city, town or populous area at a height lower than 1 000 feet, or over any area at a height lower than 500 feet.

Under subregulation 174B (1) of CAR 1988, except for take-off and landing, the pilot in command of an aircraft must not fly it at night under the visual flight rules (V.F.R.) at a height of less than 1 000 feet above the highest obstacle within 10 miles.

Under subregulation 195 (1) of CAR 1988, at night and in conditions of poor visibility, the operator and pilot in command of an aircraft must comply with the rules in Part 13 of CAR 1988 about the lights to be displayed for the aircraft.

Under subregulation 207 (2) of CAR 1988, a person must not use an Australian aircraft in a class of operation if the aircraft is not fitted with the instruments and equipment approved and directed by CASA. In approving or directing, CASA may have regard only to the safety of air navigation.

Under subregulation 215 (3) of CAR 1988, CASA may give directions requiring an operator to include, revise or vary information, procedures or instructions in the operations manual (operating procedures).

Under subregulations 217 (1) and (3) of CAR 1988, CASA may specify operators who must provide an approved training and checking organisation (a TCO) to ensure that members of the operator’s operating crew maintain their competency.

Under subregulation 308 (1) of CAR 1988, in relation to particular aircraft or categories of aircraft, CASA may exempt the aircraft, or persons in, on, or otherwise associated with the operation of, the aircraft, from compliance with specified provisions of CAR 1988. Under subregulation 308 (2), before making an exemption, CASA must take relevant safety considerations into account. Under subregulation 308 (3), CASA may make an exemption subject to necessary safety conditions.

Under section 27 of the Act, CASA may issue Air Operators’ Certificates (AOCs) for its functions. Under subsections 27 (2) and (9) of the Act, an aircraft operator must hold an AOC in order to operate for certain prescribed purposes. Paragraph 206 (1) (a) of CAR 1988, prescribes aerial work purposes of various kinds, including aerial spotting, flying training, ambulance functions, and purposes that are substantially similar to these. Substantially similar purposes are generally taken to include search and rescue, law enforcement, aerial fire fighting and marine pilot transfers.

Under paragraph 28BA (1) (b) of the Act, an AOC has effect subject to, among other things, conditions specified in Civil Aviation Orders.